Gauhati High Court
Page No.# 1/7 vs Muzamil Haque And 14 Ors on 26 May, 2025
Page No.# 1/7
GAHC010083512025
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : RSA/63/2025
FIROZ AHMED AND 4 ORS
S/O. LT. KUTUBUDDIN AHMED
2: ALFARID AHMED
S/O. LT. KUTUBUDDIN AHMED
3: NAZMINA AHMED
D/O. LT. KUTUBUDDIN AHMED
4: TAZMINA AHMED
D/O. LT. KUTUBUDDIN AHMED
5: MOSLEMUDDIN AHMED
S/O. LT. KUTUBUDDIN AHMED
ALL ARE R/O. SEUJI PATH
ZOO ROAD TINIALI
GUWAHATI-781003
DIST. KAMRUP (M)
ASSAM
VERSUS
MUZAMIL HAQUE AND 14 ORS
S/O. LT. ABDUL MANNAN, R/O. HATIGAON, BHETAPARA ROAD, P/S.
DISPUR, GUWAHATI-28, KAMRUP (M), ASSAM.
2:SAMCHER ALI
S/O. BEHEZ ALI
3:MAINUL ALI
S/O. LT. ABDUL MANNAN
4:PACHAN ALI
RESPONDENT NO. 2 TO 4 ARE R/O. HATIGAON
Page No.# 2/7
P/S. DISPUR
GUWAHATI-38
KAMRUP (M).
5:KHATIB GAJI
S/O. FAZRUB ALI
R/O. SOUTH SARANIA
MASJID ROAD
GUWAHATI-7
DIST. KAMRUP (M)
ASSAM.
6:MOWAJIUDDIN AHMED
SANTIPUR MASJID GALI
GUWAHATI
7:ON THE DEATH OF MINHAJUDDIN AHMED
HIS LEGAL HEIRS ANOWARA AHMED
SANTIPUR MASJID GALI GUWAHATI
7.1:MUSTAQUDDIN AHMED
SANTIPUR MASJID GALI
GUWAHATI
7.2:MERAJUDDIN AHMED
ALL ARE R/O. SANTIPUR MASJID GALI
GUWAHATI-09
KAMRUP (M)
ASSAM
8:ON THE DEATH OF MOWAZADA RAHMAN HIS LEGAJ HEIRS JERINA
RAHMAN
LAKHTOKIA COL. J. ALI ROAD GUWAHATI-01
KAMRUP (M)
ASSAM.
8.1:PERVEZ RAHMAN
ALL ARE R/O. LAKHTOKIA COL. J ALI. ROAD
GUWAHATI-01
KAMRUP (M)
ASSAM.
9:ON THE DEATH OF INAMUL HOQUE HIS LEGAL HEIRS AMIRUN HOQUE
LAKHTOKIA COL. J. ALI ROAD
GUWAHATI
9.1:SHEHNAZ AKHTAR HAQUE
BOTH ARE R/O. LAKHTOKIA
Page No.# 3/7
COL. J. ALI ROAD GUWAHATI-01
KAMRUP (M)
ASSAM.
10:NEWAJUL HOQUE
S/O. LT. ABDUL HAQUE
R/O. LAKHTOKIA
COL. J. ALI ROAD
GUWAHATI-01
KAMRUP (M)
ASSAM.
11:MAFIDA GULSAN
D/O. LT. ABDUL HAQUE
R/O. NEAR RAJDHANI MASJID
HATIGAON
GUWAHATI-06
KAMRUP (M)
ASSAM.
12:SURIA GULSAN
RESIDENT OF BAGHESWARI TEMPLE ROAD
SORUMOTORIA
GHY-05
KAMRUP (M)
ASSAM.
13:NAZMA GULSAN
RESIDENT OF BAGHESWARI TEMPLE ROAD
SORUMOTORIA
GHY-05
KAMRUP (M)
ASSAM.
14:GUL SAMIN
RESIDENT OF BAGHESWARI TEMPLE ROAD
SORUMOTORIA
GHY-05
KAMRUP (M)
ASSAM.
15:MINA SAQUM
RESIDENT OF BAGHESWARI TEMPLE ROAD
SORUMOTORIA
GHY-05
KAMRUP (M)
ASSAM
Page No.# 4/7
Advocate for the Petitioner : MR. R ALI, MR M BORO
Advocate for the Respondent : ,
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
26.05.2025
1. Heard learned counsel Mr. R. Ali For the appellants, namely (i) Md. Firoz
Ahmed, (ii) Md. Alfarid Ahmed, (iii) Smti. Nazmina Ahmed, (iv) Smti. Tazmina
Ahmed, and (v) Md. Moslemuddin Ahmed.
2. The principal respondent in this case is Mujamil Haque and the respondent
Nos. 2 to 14 are proforma respondents.
3. The appellant is aggrieved by the Judgment and decree dated 25.11.2024,
passed in Title Appeal No.86/2014, whereby the learned Civil Judge, Sr. Division
No. 3, Kamrup, (M), at Guwahati reversed the judgment and decree dated
30.06.2017, passed by the Court of the learned Munsif No. 3, Kamrup, (M) in
connection with Title Suit No. 171/2006.
4. It is submitted that the learned Appellate Court erred in law by deciding
right title and interest of defendant No. 4 without any counter claim. It is
submitted that the learned first Appellate Court erred in law for wrong
consideration of the Sale deed No. 5099/2022 of defendant No. 4 without any
evidence in the form of primary or secondary evidence which raises a
substantial question of law.
5. It is averred that the learned first Appellate Court has erred in law by
holding that:- "in the instant case, plaintiff has willfully abandoned his claim
Page No.# 5/7
against defendant Nos. 2 and 7 but not against the defendant No. 4 even if both
the defendant Nos. 2 and 4 have purchased the land from proforma defendant No.
9 and as such on the basis of his conduct as well as in the absence of sufficient
evidence to that effect, it would not be possible to allow the plaintiff to claim over
3 katha suit land putting the defendant No.4 to prejudice."
6. It is submitted that this order has been passed against the purview of Order
No. 33 of the Code of Civil Procedure, 1908 (CPC for short). Since abandonment
of part of claim is a matter of right and therefore the decision against issue No.
5 on the basis of said finding is vitiated by perversity and this raises a
substantial question of law. It is further contended that the first Appellate Court
has ignored the cross-examination of PW-1 and PW-2 regarding the alleged
possession of the plaintiffs/appellants over the suit land, and by holding that the
suit land was not under the possession of the plaintiff and as such the question
of dispossession of the plaintiff does not arise.
7. It is contended that the Appellate Court erred in ignoring the admitted right
of inheritance of the plaintiffs as well as all the materials in the cross-
examination of the parties available in the case record and this raises a
substantial question of law.
8. The first Appellate Court has failed to decide the appeal as per requirement
of Order XLI Rule 31 of the CPC as a last court of facts and failed to decide the
issues as well as the points of determination by considering the evidence
available on record. It is submitted that the first Appellate Court decided only
three issues framed by the learned Trial Court who in fact framed nine issues
and on the basis of two points for determination, apathetically decided the
appellant's fate. The defendants did not produce the sale deed which was a vital
document to decide this case.
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9. I have considered the submissions on behalf of the appellant with
circumspection.
10. The learned counsel for the appellant has relied on the decision of the
Hon'ble Supreme Court in State Bank of India through General Manager Vs.
National Housing Bank and Ors, reported in 2013 0 Supreme (SC) 692,
wherein it has been observed that:-
"29. Under the Code of Civil Procedure, 1908 (for short "the Code"), such
a decree in favour of a defendant is permissible in a case where
defendant either pleads a set off or makes a counter claim as
contemplated under Order VIII of the Code."
11. Considering all aspects, this appeal is admitted on framing the following
substantial questions of law.
(I) Whether the First Appellate Court's
declaration of right, title, and interest in favour of
Defendant No. 4 over the suit land, based on Sale Deed No.
5099/2002, is perverse and legally erroneous, given that
the deed was neither exhibited nor proved as primary or
secondary evidence under Sections 61 to 66 of the Indian
Evidence Act, 1872, and the declaration was made without
a counter-claim and despite the dismissal of Title Suit No.
57/2007 (new)/Title Suit No. 221/2005 (old) on 05-01-
2010?
(II) Whether the First Appellate Court's finding
that the plaintiffs' abandonment of claims against
Defendants No.2 and 7 prejudiced Defendant No.4, despite
the plaintiffs' right to abandon part of their claim under
Order XXIII Rule 1 of the CPC, is legally erroneous and
perverse?
(III) Whether the First Appellate Court's failure to
address all points of determination and material evidence,
including the cross-examination of PW-1 and PW-2 and the
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defendants' admissions regarding the plaintiffs' inheritance
rights, violates the mandatory requirements of Order 41
Rule 31 of the CPC ?
(IV) Whether the First Appellate Court's
assumption that all sale deeds pertain solely to the suit
land, without specific evidence and in contradiction to the
trial court's findings, renders its reversal of the trial court's
bad in law?
12. Issue notice to the respondents returnable within 4 (four) weeks.
13. Call for the Trial Court records of T.A. No. 86/2014 and T.S. No. 171/2006.
14. List accordingly.
JUDGE
Comparing Assistant
